In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/127/2018.
Date of filing: 14/08/2018. Date of Final Order: 1/08/2023.
Sri Arabindo Ghosal
S/o Late Ram Narayan Ghosal
Residing at Hatkhola, Manshatala
P.S-Chandannagar, Dist-Hooghly, Pin-712137. -Complainant.
-Vs -
- Shafali Mondal
W/o Late Gadadhar Mondal
- Santanu Mondal
S/o Late Gadadhar Mondal
- Shuvra Mondal
D/o Late Gadadhar Mondal
All are residing at Gondalpara
Near old Post Office, P.S-Chandannagar,
Dist-Hooghly, Pin-712137.Opposite Parties.
Before: President, Shri Debasish Bandyopadhyay
Member, Debasis Bhattacharya.
FINAL ORDER/JUDGMENT
Presented by:
Shri Debasish Bandyopadhyay, President.
Brief facts of the case: This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that the complainant approached before the ops for purchase of one room in his building. The ops agreed to sale one room in the said flat as a consideration money of Rs. 79000/-. After verbal agreement the complainant started to pay installments toward op on 8.6.2007 and entire payment has been made by the complainant within time. After each payment the complainant got receipt. The entire payment of Rs. 79000/- was completed on 25.2.2009 and after entire payment the complainant approached the op for registration of said room. The op showed various reasons for not making valid legal documentation and day by day assured the complainant that he will arrange within a short time.
After elapse of a few months when complainant approached the op for registration of said room in favour of the complainant but there was no result comes out. In the year 2018 dated 9.7.2018 the complainant heard from the reliable sources that the op cheated the complainant day by day and op has no intention to register the said room in his name because the op already tried to sale the said room to another person. After learning all of these facts complainant again went to op for clarify the entire matter, firstly the op kept mum and when the complainant pressurized the op then denied for registration and also utter that he shall not register the said flat.
Thereafter the complainant rushed to the police station for lodging the complain but concerned police officer refused to lodge the complaint and advised to contact the advocate for proper relief. On 10.7.2018 the complainant sent a demand notice to the op through his lawyer but op did not acted upon as per demand notice within the specified time limit.
On 20.7.2018 the complainant again visited the police station for proper relief and redress but the police officer refused to receive the complaint. Then the complainant lodged complain before the Ld. ACJM, Chandannagore court and the ld. Court has been pleased to direct OC, Chandannagore P.S. to treat the same as FIR.
That the complainant being the consumer of ops who has highly prejudiced by unlawful, illegal and arbitrary act. The ops activities of service to the consumer willfully negligence and deficiency in his service.
Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. Rs.80000/- to the complainant for mental agony, pain and also harassment and to pay Rs.19999/- as deficiency of service and also litigation cost.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.
Argument highlighted by the ld. Lawyers of the parties
Complainant have filed separate written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both side complainant shall have to be taken into consideration for disposal of the instant proceeding.
Heard argument of complainant at length. In course of argument ld. Lawyer of complainant have given emphasis on evidence and documents produced by the parties.
From the discussion hereinabove, we find the following issues/points for consideration.
DECISION WITH REASONS
The points of consideration nos. 1 and 2 are taken up for discussion jointly as because the questions involved in these two points of consideration are interlinked and/ or interconnected with each other. The first point of consideration which has been adopted in this case is whether the complainant is a consumer or not. In this connection it is important to note that the complainant booked one flat in the suit property which has been developed and/ or promoted by the ops and at the same of agreement for sale the complainant has paid consideration money of Rs. 79000/- to the ops against proper receipt. This matter is clearly indicting that the complainant is a consumer under the ops. Moreso, as per Section 11 of the Consumer Protection Act, 1986 the complainant is a consumer in the eye of law.
The maintainability point is one of the important issues in this case. This District Commission after going through the materials of this case finds that the claim of the complainant in this case is below Rs. 20 lakhs which indicates that this District Commission has pecuniary jurisdiction to try this case. Moreso, the complainant is a resident of Chandannagore, Hooghly and op has its business place at Chandannagore, Hooghly which indicates that this District Commission has its territorial jurisdiction for trying this case. Moreover, the facts stated in the petition of complaint is going to reflect that there is cause of action that the complainant for filing this case. Moreso, the cause of action of this case has been continued. Over the issue of limitation this District Commission after going through the provisions of Section 24A of the Consumer Protection Act, 1986 finds that this complaint case has been filed within time and there is no delay in the matter of institution of this complaint case.
All the above noted factors are clearly depicting that the complainant has the right of institution of this case against the ops and there is cause of action for filing this case and this case is not barred by limitation and the complainant is a consumer in the eye of law. All these factors are clearly reflecting that the complainant has proved his case in respect of points of consideration nos. 1 and 2 and so these two points of consideration are decided in favour of the complainant side.
The points of consideration no. 3 is related with the question whether there is any deficiency of service on the part of the ops or not and the point of consideration no. 4 is connected with the question whether the complainant is entitled to get relief in this case or not.
Regarding these two points, this District Commission after going through the evidence on affidavit which has been filed by the complainant finds that the complainant has categorically described his case in the evidence on affidavit and the evidence on affidavit which has been filed by the complainant is nothing but the replica of the petition of compliant. Moreso, the case of the complainant is also supported by documents. On parallel reading of the evidence on affidavit and documents filed by the complainant side this District Commission finds that the complainant has proved his case by way of giving satisfactory evidence. Moreover, as the ops have not contested this case, the evidence given by the complainant remains unchallenged and/ or uncontroverted. A close consideration of this case record this District Commission finds that there is no reason to disbelieve the unchallenged evidence on affidavit filed by the complainant. On close scrutiny of the evidence given by the complainant it appears that the complainant has proved that the complainant has booked one flat in the suit property and at the time of agreement for sale the complainant has paid Rs. 79,000/- to the ops but the ops neither have handed over the said flat nor have refunded the said money. In view of this decision of Hon’ble Apex Court which is decided in the case of Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor and it is published in AIR2022 SC1824 this District Commission finds that the complainant is entitled to get back the advance money which has been paid to the ops. All the above notes factors are clearly reflecting that the complainant has proved his case in respect of points of consideration nos. 4 and 5. It is revealed that there is deficiency of service on the part of the op and there is also unfair trade practice on the part of the ops. So, these two points of consideration are decided in favour of the complainant.
In the result it is accordingly
ordered
that the complaint case being no. 127 of 2018 be and the same is allowed ex parte but in part.
It is held that the complainant is entitled to get refund of Rs. 79,000/- from the ops along with interest @ 9% per annum.
Opposite parties are directed to refund the said amount and interest within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.
In the event of nonpayment/ non compliance of the above noted direction the opposite parties are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
